By TRACY JOHNSON, SEATTLE POST-INTELLIGENCER REPORTER

Published 10:00 pm, Thursday, June 16, 2005

Many criminals deemed the worst by judges in the past two decades won't be able to fight their exceptionally long prison terms even though the way they were sentenced has since been found unconstitutional, the state Supreme Court ruled yesterday.

The decision likely dampens the hopes of hundreds of prisoners who were given long sentences, including Martin Pang, who's serving 35 years for torching his parents' frozen-food warehouse in a blaze that killed four firefighters, or Dung Hoang Le, who has asked to have his 70-year sentence for killing prominent Seattle businesswoman Mayme Lui thrown out.

"It's very good news," King County Deputy Prosecutor Deborah Dwyer said. "The people who got exceptional sentences were, as we said all along, the worst of the worst."

At the same time, the court overturned the murder conviction of Shawn Swenson, who got 55 years behind bars for the death of a man who was left hogtied in his Seattle recording studio in 1995. But the reasons that his conviction was overturned were unrelated to the sentencing issue.

Yesterday's decision centered on a momentous U.S. Supreme Court ruling last June that said Washington had been improperly letting judges hand down extra-long prison sentences for two decades.

It said juries, not judges, should decide whether there were reasons to give people harsher-than-usual sentences -- and those reasons must be found beyond a reasonable doubt.

The state Supreme Court was left to decide what to do with state prisoners serving such sentences. In yesterday's unanimous ruling, it said last year's U.S. Supreme Court ruling didn't apply to old cases, leaving most prisoners right where they are.

The exception is prisoners who are still appealing -- generally, the more recent cases -- because their convictions are not yet final. They may still be able to get new sentencing hearings and try to seek lighter terms.

They include Jesus Mezquia, who was convicted last year of killing Seattle punk-rock singer Mia Zapata in 1993. A judge found that he deserved more than the standard 20- to 26-year sentence for first-degree murder, sending him away for nearly 37 years.

Attorney David Zuckerman, who defended Swenson in yesterday's case, had urged justices to rule that all prisoners who got extra-severe sentences were entitled to new sentencing hearings -- not just those whose cases are still under appeal.

"A defendant's constitutional right shouldn't depend on the exact date that his appeal was decided," Zuckerman said.

Earlier this year, state lawmakers reworked Washington's sentencing laws to let juries decide whether there are certain factors -- such as deliberate cruelty or a particularly vulnerable victim -- that might warrant an exceptionally long sentence.

In yesterday's ruling, the court overturned Swenson's first-degree murder conviction in the death of David Loucks, 34, because jurors were given ambiguous instructions about the legal liability of an accomplice.

When he was found guilty, Swenson was facing 21 to 28 years in prison for the crime but got 55 years from a judge who found that the crime involved "deliberate cruelty." Swenson appealed both the murder conviction and the sentence.

It's in dispute whether prosecutors could seek another exceptionally long sentence if he is found guilty again in a second trial.

Also in yesterday's case, justices upheld the 30-year sentence of Michael Ray Evans, who abducted a woman from Pierce County in 1988, drove her to Portland and was accused of saying, just before raping her, that her worst nightmare was about to come true.

Until last June, judges in Washington handed out several hundred exceptionally long sentences each year. Many were in high-profile cases.

In 1994, when Connie Freeburn was abducted, raped and stabbed in the head with a screwdriver -- an attack that left her permanently disabled -- Remus Jordan got a 77-year sentence, roughly double the standard term.

Kevin Lamont Smith was given 100 years for the same attack on the 26-year-old Seattle woman, a sentence believed to be the longest ever given for an attempted murder in King County.